Federal Communications Commission FCC 14-16
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
JET FUEL BROADCASTING
Application for a New AM Broadcast Station
at Lolo, Montana
and
RAMS III
Application for a New AM Broadcast Station
at Springville, Utah
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File No. BNP-20040130AQT
Facility ID No. 161347
File No. BNP-20040130BNE
File No. BNP-20100726AMH
Facility ID No. 161249
MEMORANDUM OPINION AND ORDER
Adopted: February 20, 2014 Released: February 20, 2014
By the Commission:
1. The Commission has before it the June 24, 2010 Application for Review (“AFR”), filed
by Jet Fuel Broadcasting (“JFB”), applicant for a new AM broadcast station at Lolo, Montana. JFB seeks
review of the Media Bureau’s May 25, 2010, decision awarding a dispositive preference,
1
under Section
307(b) of the Communications Act of 1934, as amended,
2
to the RAMS III (“RAMS”) mutually exclusive
application for a new AM broadcast station at Springville, Utah.
2. In its AFR, JFB disputes the staff’s denial of its claimed first local transmission service
proposal at Lolo, maintaining that the relocation of an existing FM station to that community that
occurred after JFB had filed its application in the 2004 AM Auction 84 (“Auction 84”) filing window
3
should not have undermined JFB’s first service claim.
4
Contrary to JFB’s contention, the Bureau’s
decision did not turn upon the subsequent relocation of the FM station to Lolo. The Media Bureau made
clear in the Staff Decision that, even disregarding the move of the FM station to Lolo and assuming the
legitimacy of JFB’s proposed first local service at that community, the JFB application would still not
have prevailed over RAMS’s proposal to provide first local transmission service at the more populous
community of Springville.
5
Where, as here, applicants propose first local transmission service at two or
1
Christopher D. Imlay, Esq., et al., Letter, Ref. No. 1800B3-TSN (MB May 25, 2010) (“Staff Decision”).
2
47 U.S.C. § 307(b).
3
Station KDXT(FM), formerly licensed at Victor, Montana (File No. BLH-20080208ADZ).
4 AFR at 1.
5
Springville’s 2000 Census population of 20,424 was six times that of Lolo’s 2000 population of 3,388. The
magnitude of the population difference is even greater using 2010 Census figures (29,466 for Springville to 3,892
for Lolo).
Federal Communications Commission FCC 14-16
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more separate communities, and listeners in each of the communities receive five or more aural services,
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the Commission awards a preference to the community with the larger population.
7
We therefore affirm
the Media Bureau’s rejection of this argument.
3. JFB further argues that the 589-mile distance between the two proposals mandates grant
of both, and that RAMS’s Springville proposal is “highly overpowered and causes nighttime
interference.”
8
It also contends that the two applicants should have been allowed to “harmonize” their
engineering to resolve any interference issues.
9
We also find these arguments to be unpersuasive. The
two proposals would cause nighttime interference to each other under well-established Commission
engineering standards, precluding the grant of both.
10
With regard to JFB’s demand that it now be
allowed to “harmonize” its engineering with RAMS’s proposal by way of settlement, JFB acknowledges
that, since the original mutually exclusive (“MX”) group of 116 applicants included its and RAMS’s
proposals, it was already afforded such a limited settlement opportunity.
11
As the Public Notice listing
those applicants and announcing the three-month settlement window clearly stated, the window
constituted a limited exception to our rules prohibiting auction filing window applicants from discussing
or negotiating settlement agreements.
12
We reject JFB’s demand for an additional settlement opportunity
because, although the applicants in the MX groups were listed in the Auction 84 Settlement Public
Notice,
13
JFB did not ascertain the specific applications with which it was in conflict until after the
settlement window had closed.
14
6
Both communities are well served by at least five full-time aural services. See Family Broadcasting Group,
Decision, 93 FCC 2d 771, 779 (Rev. Bd.), rev. denied, FCC 83-559 (1983) (Commission considers areas that
receive five or more services to be abundantly served).
7
See, e.g., Blanchard, Louisiana and Stephens, Arkansas, Memorandum Opinion and Order, 10 FCC Rcd 9828
(1995) (decision based on population difference of 38 people); Cameron and Hackberry, Louisiana, Report and
Order, 20 FCC Rcd 16267 (MB 2005) (decision based on population difference of 266 people).
8
AFR at 2.
9
AFR at 2-3.
10
JFB’s Lolo proposal would enter the 25 percent exclusion root sum square nighttime limit of RAMS’s proposed
Springville facility. As such, JFB’s proposal would be a mid-level interferer to RAMS’s, and under the
Commission’s Rules the two proposals are considered to be mutually exclusive. See Note to 47 C.F.R. § 73.3571;
Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Second Report
and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rule Making, 26 FCC Rcd 2556,
2580-84 (2011). As for JFB’s allegation that RAMS’s proposal is “highly overpowered,” the staff bases its analyses
on the proposals presented, rather than on what certain applicants might unilaterally consider to be more
appropriately powered proposals by competing applicants. Here, RAMS proposes a non-directional 10 kW (day)
0.57 kW (night) Class B AM facility, which is well within the allowed power limits for that class. 47 C.F.R. §
73.21(a)(2).
11
AFR at 2-3. The original 116-application group was designated MX Group 84-39. After certain parties arrived at
settlements or technical resolutions during the settlement window period (see AM Auction No. 84 Mutually
Exclusive Applicants Subject To Auction – Settlement Period Announced for Certain Mutually Exclusive
Application Groups; September 16, 2005 Deadline Established for Section 307(b) Submissions, Public Notice, 20
FCC Rcd 10563 (MB 2005) (“Auction 84 Settlement Public Notice”), as extended by Auction No. 84 Settlement
Period and Section 307(B) Submission Deadline Extended to October 31, 2005, Public Notice, 20 FCC Rcd 14492
(MB 2005)), MX Group 84-39 was divided into sub-groups; JFB’s and RAMS’s proposals were two of 11
applications in sub-group 84-39F. See AM Auction No. 84, MX Group 84-39 Reconfigured Due to Settlements and
Technical Resolutions; Subgroups Listed, Public Notice, 24 FCC Rcd 12099 (MB 2009).
12
Auction 84 Settlement Public Notice, 20 FCC Rcd at 10564 (“Once this settlement window is completed, the anti-
collusion restrictions will again take effect for [the listed] applicants.”) citing 47 C.F.R. §§ 1.2105(c), 73.5002(d).
13
Auction 84 Settlement Public Notice, 20 FCC Rcd at 10570-73.
14
AFR at 3.
Federal Communications Commission FCC 14-16
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4. In this regard, JFB complains that the MX group noted in the Public Notice was
“mammoth in size, making it extremely difficult for any precise two applicants to know that they should
work with each other specifically to resolve prospective engineering conflict, when such resolution could
conceivably pose new conflict, or maintain existing conflict, with yet another applicant.”
15
In point of
fact, many of the applicants listed in the Public Notice were able to reach settlements. Furthermore, the
Auction 84 settlement window did not create new mutual exclusivities between proposals, as JFB
suggests. Rather, the efforts of those applicants listed in the Public Notice that, unlike JFB, chose to
negotiate, reach and file settlements or technical resolutions during the window actually eliminated
certain application conflicts, thus enabling the largest MX group in Auction 84 to be broken down into
smaller sub-groups. The RAMS and JFB proposals were mutually exclusive at all relevant times, and
JFB’s failure to propose a technical resolution or attempt a settlement during the designated settlement
window period does not justify opening a second. Our congressional auction mandate does not require us
to continue making exceptions to the auction rules prohibiting applicant communications,
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in the hope
that parties that did not reach settlements or technical resolutions in the first instance might do so later.
The Commission and the courts have determined that the public interest and the integrity of the auction
process do not require us to allow post-Form 175 technical amendments designed to resolve mutual
exclusivity.
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5. Upon review of the AFR and the entire record, we conclude that JFB has failed to
demonstrate that the Bureau erred. The Media Bureau, in the Staff Decision, properly decided the matters
raised, and we uphold its decision for the reasons stated therein.
6. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the
Communications Act of 1934, as amended,
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and Section 1.115(g) of the Commission’s Rules,
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the AFR
IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
15
Id.
16
See generally 47 U.S.C. § 309(j).
17
Robert E. Combs, Memorandum Opinion and Order, 19 FCC Rcd 13421, 13426 (2004), recon. dismissed, Order
on Reconsideration, 20 FCC Rcd 17238 (2005), citing Bachow Communications, Inc. v. F.C.C., 237 F.3d 683, 691
(D.C. Cir. 2001) (while Section 309(j)(6)(E) of the Act “affirms Congress’ view that statutory competitive bidding
authority does not wholesale replace ‘engineering solutions, negotiation . . . and other means’ to avoid mutual
exclusivity; it does not, as appellants would have it, forbid resort to competitive bidding unless no other means to
resolve mutual exclusivity are available.” (emphasis in original)).
18
47 U.S.C. § 155(c)(5).
19
47 C.F.R. § 1.115(g).